European Court of Human Rights

FIFTH SECTION

CASE OF AVRAMCHUK v. UKRAINE

(Application no. 65906/13)

JUDGMENT
 

STRASBOURG

5 October 2023

This judgment is final but it may be subject to editorial revision.

In the case of Avramchuk v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

 Lado Chanturia, President,
 Stéphanie Mourou-Vikström,
 Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 65906/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on 14 October 2013 by a Ukrainian national, Ms Kateryna Sergiyivna Avramchuk ("the applicant"), who was born in 1991 and lives in Vyshhorod, and was represented by Ms T.M. Oleksiyuk, a lawyer practising in Kyiv;

the decision to give notice of the application to the Ukrainian Government ("the Government"), represented by their Agent, most recently Ms M. Sokorenko;

the parties' observations;

Having deliberated in private on 14 September 2023,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The application concerns an alleged denial by the State authorities of access to information of public interest in breach of Article 10 of the Convention.

2.  The applicant is a journalist working for the Internet media outlet Ukrainska Pravda (Ukrainian Truth).

3.  On 16 March 2012 the applicant requested the Parliament of Ukraine to provide her with information about the number of apartments, paid for out of the State budget, which were allocated to the sitting members of parliament ("the MPs) and the price and surface area of the apartments. She also asked for the names of the MPs who had received those apartments. The applicant asked for the relevant documentation, if possible, or for the provision of the information in any form available. She relied, inter alia, on the Law on the Status of the People's Deputies and the Law on Access to Public Information ("the Law on Access").

4.  By a letter of 29 March 2012 the Head of the Parliament Secretariat informed the applicant that a total of fifteen apartments of different surface areas were allocated to MPs but that their names could not be provided, as this constituted confidential information about a person and could not be disseminated without that person's consent. In the latter context the letter referred to judgment no. 2-рп/2012 of the Constitutional Court of Ukraine.

5.  The applicant challenged that refusal before the courts, complaining that she had received an incomplete reply to her request for information. She stated that it was important to know the names of the MPs who had received the housing in order for the public to be able to control such a large budgetary expenditure. She relied on section 35 of the Law on the Status of the People's Deputies, which provided that the distribution of housing to MPs was to be conducted openly and publicly, and on section 6 of the Law on Access, pursuant to which information about public expenditure and the use of State property could not be restricted, in particular the names of persons receiving such property. The same section also set out a three-part test to be met when restricting access to information which, according to the applicant, had not been applied to her request.

6.  On 21 May 2012 the applicant's claims were dismissed by the Kyiv City Administrative Court. In a judgment of one and a half pages it reasoned that the data about a person, including one's name, address and financial status, was, pursuant to the Law on Information and judgment no. 2-рп/2012 of the Constitutional Court of Ukraine, confidential information and could not be disseminated without that person's consent. Therefore, the reply to the applicant's information request had been provided in compliance with the legislation.

7.  The applicant appealed, essentially restating her arguments. She also noted that the local court had failed to conduct any examination of her arguments and the legislative provisions she had relied on.

8.  By a final ruling of 28 May 2013 the Kyiv Administrative Court of Appeal dismissed the applicant's appeal, endorsing the findings of the local court.

THE COURT'S ASSESSMENT

1. ADMISSIBILITY

9.  The Government submitted, firstly, that the applicant had in fact been provided with the information she had requested, that is, information about the number of apartments allocated and their surface area and cost. She had, nevertheless, challenged the reply given, complaining of the non-provision of documents which contained personal data. Furthermore, in May 2012 she had published an article about the Parliament's reply and the local court's judge in her case; the article contained "devastating criticism" and allegations that the judge had failed to verify the "untrue" facts provided by the defendant. The Government argued that, in view of the above considerations, the applicant had abused her right of application.

10.  The applicant objected, asserting that she had clearly received incomplete information and that she had never insisted on the provision of a reply in any particular form, including the provision of particular documents.

11.  The Court, in the light of the applicable general principles as set out in, for example, Zhdanov and Others v. Russia (nos. 12200/08 and 2 others, §§ 79-81, 16 July 2019), does not discern in the applicant's actions any elements of possible "harmful exercise of a right for purposes other than those for which it is designed" and which impedes the proper functioning of the Court or the proper conduct of the proceedings before it. The Government's preliminary objection as to the abuse of right of application must therefore be dismissed.

12.  Secondly, the Government submitted that Article 10 was not applicable, as there had been no interference with the applicant's freedom of expression since one of the four criteria established in Magyar Helsinki Bizottság v. Hungary ([GC] no. 18030/11, §§ 158-80, 8 November 2016) had not been met: the criterion relating to the "purpose of the information request". They argued that the purpose of the applicant's request had not been the reception and imparting of information but rather "litigation aimed at the protection of her allegedly violated right to access public information". They also stated that the applicant had failed to specify the reasons for her request both in the request itself and in her application to the Court.

13.  The applicant stated that she had requested information of great interest to the public, which had been necessary for her professional activities and, being a "highly-ranked journalist", she had tried to obtain information from official sources. She also asserted that the information in issue had been "ready and available".

14.  The Court reiterates that a violation of the right of access to information held by a public authority may arise where such access is instrumental for the individual's exercise of his or her right to freedom of expression and where its denial constitutes an interference with that right. The threshold criteria for such an assessment are the purpose of the information request, the nature of the information sought, the role of the applicant and whether the information was ready and available (ibid., §§ 149-80).

15.  Concerning the first of those criteria, which is the only one that the Government argued had not been met in the present case, it must be a prerequisite that the purpose of the person in requesting access to the information held by a public authority is to enable his or her exercise of the freedom to "receive and impart information and ideas" to others. Thus, the Court has placed emphasis on whether the gathering of the information was a relevant preparatory step in journalistic activities or in other activities creating a forum for, or constituting an essential element of, public debate (ibid., § 158).

16.  The Court notes that contrary to the Government's assertion, in her submissions the applicant clearly stated the reasons for her request. She argued before the domestic courts that her request had been prompted by the need to know the names of the MPs who had received housing in order for the public to be able to control budgetary expenditure. In her application to the Court the applicant stated that she had intended to write an article on the possible misuse of public funds in that State housing had been allocated to MPs who had no need of it because they either owned other apartments, were famous and well-off businessmen, and that the allocated housing had remained in their possession and had never been returned to the State. The reply, incomplete on account of the non-provision of the MPs' names, had effectively precluded her from pursuing that intention.

17.  The Court further notes that the very nature of the information requested, that is its relation to public spending and the applicant's role as a journalist and public "watchdog", neither of which were disputed by the Government, makes - and must have made - the purpose of her request clear enough.

18.  The Court has, therefore, no doubt that the information sought by the applicant was necessary for her as a preparatory step in her journalistic activities on a matter of public interest, and that the denial of access to it constituted an interference with her rights under Article 10 and that this provision is applicable. This Government's preliminary objection must therefore be dismissed.

19.  The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

2. MERITS

20.  The applicant complained that the interference with her freedom of expression had not been in accordance with the law and that the domestic courts had failed to protect her right. In particular, she submitted that section 6(2) of the Law on Access provided a three-part test quite similar to that under paragraph 2 of Article 10 of the Convention, which provided for the balancing of conflicting interests. Neither the Parliament Secretariat nor the domestic courts had applied that test, but rather simply referred to the allegedly confidential nature of the information sought. Furthermore, section 6(5) of the Law on Access clearly provided that access to information about the use of budgetary funds and State property, including access to copies of documents with the names of persons to whom such property had been transferred, could not be limited.

21.  The Government did not submit any comments as to the merits of the complaint.

22.  In order to be justified, any interference with the right to freedom of expression must be "prescribed by law", pursue one or more of the legitimate aims mentioned in paragraph 2 of Article 10 and be "necessary in a democratic society".

23.  As regards lawfulness, the Court refers to Centre for Democracy and the Rule of Law v. Ukraine (no. 10090/16, §§ 30-34, 26 March 2020), which contains a presentation of the Law on Access, including section 6, and of the Constitutional Court's judgment no. 2-рп/2012.

24.  It notes, therefore, that in refusing to provide the names of the MPs concerned, the authorities, including the courts, relied principally on the Constitutional Court's judgment no. 2-рп/2012, which essentially qualifies any information about a person as confidential (see Centre for Democracy and the Rule of Law, cited above, §§ 46-48 and 107). On the other hand, the Court must not lose sight of the possibility, guaranteed by the Law on Access, that certain personal information, even if confidential, may be disclosed in certain circumstances. However, considering that the domestic courts failed to address the applicant's arguments to that effect and analyse the above-mentioned legislative provisions, the Court finds that it is not necessary to decide whether the condition of lawfulness was met since such a failure implies that the interference did not meet the condition of necessity.

25.  As noted above, the domestic courts gave very succinct reasons for their conclusions, essentially endorsing those advanced by the Parliament Secretariat with reference to the Constitutional Court's decision. They disregarded the applicant's persistent arguments based on the provisions of the Law on Access and the Law on the Status of the People's Deputies. In particular, no explanation was given as to why section 6(5) of the Law on Access or its three-part test had not been applied to the applicant's case. This also led to the courts' making no attempt to balance the potential interests involved, that is, the applicant's interest in having access to information of public interest and the need to protect the rights of private persons.

26.  In view of the above, the Court cannot but find that the reasons adduced to justify the interference were not sufficient, and that, consequently, the interference was not "necessary in a democratic society".

27.  There has accordingly been a violation of Article 10 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

28.  The applicant claimed 1,000 euros (EUR) in respect of non-pecuniary damage, as she had suffered "frustration and feelings of injustice".

29.  The Government contested that claim, reiterating their position as to the inadmissibility of the applicant's complaint.

30.  The Court considers that the applicant suffered non-pecuniary damage on account of the violation found and therefore awards her EUR 1,000 as claimed.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;
2. Holds that there has been a violation of Article 10 of the Convention;
3. Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 1,000 (one thousand euros) in respect of pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 5 October 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Lado Chanturia
 Deputy Registrar President